Even as the number of 2016 presidential candidates in both parties has dwindled, the media -- particularly television news -- has yet to focus on an in-depth discussion of the candidates’ policy proposals. While it was difficult to discern the energy policies that a President Trump would implement, candidate Hillary Clinton has made quite clear the energy goals that a President H.R. Clinton would set. Including her “Clean Energy Challenge,” issued last summer, and the proposal to increase energy efficiency standards that she announced in February 2016, Clinton has made very specific and far-reaching plans that would continue and expand on the Obama Administration’s policies. The focus of her energy policy is twofold – address climate change and use the clean energy industry to grow the economy and create jobs. It seems safe to say the phrase “all of the above” will not apply to the Clinton administration energy policy.

Today is the day the world ended. But it didn’t. The spin put by some on the Mayan calendar didn’t pan out and the world continued. Here in Baltimore we didn’t buy into the predictions, but just in case, we went looking for some end-of-the world insurance policies. We didn’t come up with anything. But while we were looking we turned up quite a bit of coverage for the-end-of-the-world-as-we-know-it. Some call it climate change insurance; most just recognize it as an old friend taking on a few new attributes to meet the needs of the present.
We found quite a bit of that old friend. There is the simple stuff. Farmers grow crops. If it doesn’t rain, there are no crops. If it rains too much, there are no crops. If hail is overwhelming, there are no crops. If frost comes early, or stays late, there are no crops. Sounds like extreme and variable weather and also the makings of an insurance policy. Total Weather Insurance agrees. The beauty of TWI's product is that the farmer need not prove any loss. As The Economist reports, he or she just bets on the details of the weather on a 2.5 x 2.5 mile grid across the United States, and with data-processing getting more and more sophisticated, the variations of farming are smoothed substantially.
At the other extreme are catastrophe bonds. These investment vehicles offer something very few investments can offer – zero correlation with the stock market. In a nutshell (and according to Investopedia) a catastrophe bond is a “high-yield debt instrument that is usually insurance linked and meant to raise money in case of a catastrophe such as a hurricane or earthquake. It has a special condition that states that if the issuer (insurance or reinsurance company) suffers a loss from a particular pre-defined catastrophe, then the issuer's obligation to pay interest and/or repay the principal is either deferred or completely forgiven.” We noted earlier this year that Florida’s Citizen’s Property Insurance Corporation issued the largest catastrophe bond ever at $750 million. That trend has continued with this year’s issuance exceeding last year’s by over $2.5 billion.
Some might say that the above would exist even if climate change were not occurring. Possibly. But what about insurance for renewable energy and for green buildings?
William Gallagher Associates offers its Green Energy Insure product, recognizing that new technologies carry more risk than proven ones. Green energy purveyors need to address the risks accompanying their technology and seek coverage for the failure of the technology itself, the cost of opening and closing the equipment to get to the problem, and any ensuing damage that may occur.
Green building insurance was pioneered by Fireman’s Fund, but it is no longer alone in the field. Other companies such as AIG, Zurich, Travelers, and Chubb now offer products addressed to the issues green buildings face like vegetated roofs, building commissioning, recycling of debris rather than disposal, water and lighting efficiency, and certain certified professionals.
One climate change product that has not made an appearance is greenhouse gas insurance. So far as we know, no one is offering carbon dioxide coverage, at least by that name. We have written many times before that such coverage is to be found in general liability policies and D&O policies under the general insuring agreement, because the absolute pollution exclusion doesn’t apply. The issue has been litigated twice and the policyholder has won on both occasions. See Donaldson v. Urban Land Interests, Inc., 564 N.W.2d 728, 732 (Wis. 1997); Steadfast Ins. Co. v. The AES Corp.
The Mayan prophecy advocated by some did not come to pass today. To assuage the disappointment, we will offer another. Insurance products are wonderful; they are even more wonderful when they pay off. People being what they are, there will be disputes over these new instruments. The petitioning policyholder will be more likely to prevail where it has prudently purchased.

We were in New York City today at a conference, Cooling on Climate Change: Designing the Message, sponsored by the Urban Green Council. The conundrum to be unlocked was: how come something as serious as climate change doesn't have politicians and the public standing in line to solve the problem? The answer is obvious to trial lawyers: even with the most compelling facts, if you don't have the jury emotionally, the result is likely to come out wrong. Similarly, and the point of this article, clients may be very concerned about certain effects caused by climate change, but if the effects are wrapped in the gospel of climate change, you may be ineffective in communicating your ability to serve them.
Opening the conference was Jim Hansen. His credentials as one of the first scientists to sound the alarm and his dogged advocacy (even in the face of some heavy-handed muzzling by the second Bush administration) make him an advocate emeritus in some climate change circles. Dr. Hansen noted that there is a huge gap between what scientists know and what the public knows. There can be no dispute that the planet has warmed 0.6 degrees (C) in the last 30 years; that recent extreme summer heat events have covered 10% of the earth's land area, where previously it was only .2%; that Arctic summer sea ice is reduced in extent by 50% and that the incidence of wildfires has increased 30-fold in the last 30 years. He concludes that the fossil fuel industry is subsidized in that it does not pay for all the costs associated with the use of fossil fuels. He proposed a fee and dividend system where all fossil fuel producers are taxed at the production site and the tax is rebated directly to every citizen; the government would not keep a penny. His system is transparent, market-based, stimulates innovation, does not enlarge government and leaves energy decisions to individuals. He described his plan as conservative. We think some will differ on that, perhaps because his compelling facts do not (as we will explain) compel.
Next up was Elliott Diringer, of the Center for Climate and Energy Solutions (formerly the Pew Center on Global Climate Change, which was characterized by the University of Pennsylvania as the world's leading environmental think tank). After explaining the fundamental characteristics of the climate issue (among other things, it cannot be solved by one nation; most severe impacts are not here and not now; and the precise impacts and costs of action or inaction are not known), he noted the messages of both sides. Those wishing to take action highlight the risks of inaction and promote the benefits of taking action such as "green" jobs, improved American competitiveness and national security, improvement in public health and intergenerational fairness. Those opposed to action have discredited the science as politicized. They exploit the uncertainties in the science and the uncertainty of future benefits. They argue for fairness as China and India are not limiting their emissions and hold up the spectre of a world government and threats to national sovereignty. After discussing the role of scientists in communicating the climate change message (he advocates for trusted non-scientist validators) and criticizing the media for always seeking "balance" when objectively there is no debate on many climate change topics, he came up with six "messages to the middle":
1. Climate Change is here and now.2. The costs of climate change are here and now and are growing.3. Prudent risk management requires both mitigation and adaptation.4. The upfront costs are sensible investments.5. Acting now can have real benefits for public health and energy security.6. The transition to a low-carbon economy is an economic opportunity.
Lisa Fernandez of the Yale Project on Climate Change Communication spoke next. She offered the statistics on public perception of climate change. Since 2006 polling shows a sixteen point decline in the public's belief that climate change is happening. Public support for addressing climate change was highest in 2006, the time of An Inconvenient Truth, the IPCC's continuing work and a robust economy. Moving forward four years to 2010, the economy had tanked, "ClimateGate" had occurred and the vaunted Copenhagen summit had failed to deliver. Ms. Fernandez noted the perception that there is a lot of disagreement among scientists -- even though there is no debate among the majority of scientists. There is a 98% consensus among scientists that climate change is happening and is in part anthropogenic. She stated that research shows that in order for people to support action they need to be convinced that climate change is real, needs action, is solvable and is caused by humankind. She concluded, however, that knowledge is necessary but not sufficient. A striking statistic was that the proportion of respondents denying or dismissing climate change rose from 7% in 2006 to 26% in 2010. Ms. Fernandez closed with more surveys on the need to tailor any message; one size certainly does not fit all.
All of which set the table for David Ropeik, an expert on risk perception, communication and management. Mr. Ropeik laid it out quite simply. There are multiple features of thinking that determine how we perceive risk. Most of these are in the subconscious. From the most basic neural pathways (responding to fear is hardwired into our brains) to our need to belong to our community to mental shortcuts that "fill in the blanks", each and all of these stand in the way of a rational response. Until we understand that, we can have all the facts in the universe and may still fail to take action or even deny that action needs to be taken.
That you are reading this article demonstrates the validity of Mr. Ropeik's approach. Our title is something a sideshow barker might announce, triggering your preconceptions, hopes, and curiosity. Maybe you had some views about the veracity or utility of the author's perspectives. One thing you certainly did not have was any factual information about what the article would contain. But here you are anyway looking for what to "do" to get more climate change clients.
Maybe the right way to sell climate change services is not even to mention climate change. A speaker on the second panel, Daniel Probst of property manager Jones Lang Lasalle, completely agrees. His clients are doing many of the things advocates for climate change action support but their incentive is not to save the planet. They are improving the environmental performance of their buildings (the source of 40% of US CO2 emissions) because doing so saves them money, allows them to charge higher rents, reduces turnover, improves employee productivity and makes permitting easier. Approaching clients on those topics unloads the controversy associated with climate change. For some, that is exactly what will be needed to close the sale. But for others, they will want the big picture and will value the "marketing to the middle" promoted by Mr. Diringer. Neither approach will be right all of the time, but all of the time is not the metric.

One of the more infuriating things about lawyers is that often, if they do their job right, their client wins and no one else benefits from it. This is what happened Monday before Judge Sand in the Southern District of New York in the closely followed green building case, Gifford v U.S.Green Building Council. The judge, in a short Memorandum & Order barely over seven pages (attached below) dismissed Mr. Gifford's case on procedural grounds. So we are left to wonder about the merits.
Mr. Gifford and his co-plaintiffs are building engineering professionals. They assert that the USGBC's LEED standard is false and misleading and has injured them in their business. Specifically, "LEED-certified buildings are no more energy-efficient than non-LEED certified buildings. USGBC's own study data on the subject indicate that, on average, LEED buildings use 41% more energy than non-LEED buildings. There is no objective empirical support for the claim that LEED buildings consume less energy. LEED buildings are less efficient because the criteria that USGBC purportedly uses to certify buildings do not correlate with energy efficiency." First Amended Complaint ¶ 4 (attached below); also id. ¶ 32 (providing more detail). As a result of the LEED claims made by USGBC, customers purchase LEED services rather than plaintiffs' design services.
These injuries, according to plaintiffs, entitled plaintiffs to proceed in court for injunctive relief and damages under the federal Lanham Act for commercial misrepresentations and parallel state law claims.
USGBC defended on the ground that the plaintiffs had no standing to assert Lanham Act injury. The court agreed. Memorandum & Order at 7.
There are two tests for standing in the Second Circuit. Under the first test, the parties must be competitors. Id. at 4. Plaintiffs did not certify green buildings or accredit professionals, as USGBC did. Accordingly, they failed the first test. The second test, the reasonable commercial interest test, was more forgiving. There "a plaintiff must demonstrate (1) a reasonable interest to be protected against the alleged false advertising, and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising." Id. (citation omitted). Where the parties are not direct competitors a plaintiff must make a "more substantial showing of injury and causation.". Id. at 5 (citation omitted).
Mr. Gifford and his co-plaintiffs could not satisfy that test either. The court found the allegation that plaintiffs' professional services would be "subsumed" by USGBC was "speculative". It commented that "there is no requirement that a builder hire LEED-accredited professionals at any level, let alone every level, to attain LEED certification, ..." Id. at 6. (While technically correct, my LEED AP colleagues confirmed that as a practical matter they can't imagine a LEED project would proceed without a LEED AP on the project team. At the very least, having a LEED AP on the team entitles one to points toward certification.)
As to the specific allegation of misrepresentation regarding building efficiencies, there was no allegation that anyone relied on that statement to decline to hire Mr Gifford. So the plaintiffs lacked standing under the second test too. Id. at 7.
The absence of standing was fatal to the federal claims, which the court dismissed with prejudice. Id. As to the state law claims, it declined to assert supplemental jurisdiction and dismissed those claims as well (but without prejudice). Id. at 8.
The blogosphere reports that Mr Gifford is considering his appeal. A press release by USGBC states: "This successful outcome is a testament to our process and to our commitment to do what is right."
What the rest of us want to know, however, is whether there was any substance to any of Mr. Gifford's allegations. This is important and not only for the decision of whether it is sensible to build a LEED-certified building. One has to think about plans that go awry. Should a green building project fail and investors and lenders lose money (and it is a statistical certainty that this will happen), the injured parties will cast about looking for a place to lay the blame. Mr Gifford might assert that false hopes raised by USGBC's claims are at the root of the problem.
20110815 Memorandum & Order (of Dismissal) Gifford v. U.S. Green Building Council (72.00 bytes)
Gifford v U.S. Green Building Council - First Amended Complaint February 7, 2011.PDF (94.75 kb)

It appears that the sponsors of the legislation recognized that behavioral change is more likely to occur successfully when positive reinforcement is provided rather than simply mandating compliance with change. To that end the proposed legislation seeks to create positive financial incentives to spur private development projects that would reduce stormwater runoff through the use of Green or Blue roofs.A3682: Would provide low interest loans to private parties to build green or blue roofsMany jurisdictions provide financial incentives for “Green” or sustainable design and construction. This bill would amend the law known as the “Regional Greenhouse Gas Initiative” to allow funds from the “Global Warming Solutions Fund” to be used to extend low interest loans to private parties, including homeowners and owners of commercial, industrial, and institutional entities.Material terms of the loans would require: a) that they be made for no more than 85% of the cost of the Green or Blue roof; b) that the term not exceed 20 years; c) that the interest rate be low, and not to exceed 4%; and d) that loans be secured by a promissory note that requires the loan to be repaid if the property is sold or transferred or that requires the purchaser to assume the loan.In addition to specifying which agencies would be responsible for the financial aspects, broad powers are being given to the Department of Environmental Protection and the Department of Community Affairs to oversee and review construction to ensure compliance with the standards that are established.This incentive is no doubt socially desirable. However, given the fiscal crisis that is faced by New Jersey, and many other states, it is questionable whether financial resources will be available to fund this program at any meaningful level. There have already been efforts to erode the Global Warming Solutions Fund and such efforts are likely to continue until the economic climate changes significantly. A3678: Requires preferential ranking for projects that seek funding from an environmental infrastructure programThe least sexy of the companion bills, this would require the Department of Environmental Protection to provide a preferential ranking to projects that seek funding from an Environmental Infrastructure Financing Program to those projects that include Green or Blue roofs. Hardly anything controversial in this bill. For other states it provides an example of positive incentives that can be offered to developers of construction projects.As set forth in this series of posts collectively these bills seek to address a serious problem that many are facing with respect to stormwater management. These efforts have been noticed by environmental groups. Jeff Tittel, the director of the New Jersey Chapter of the Sierra Club observed: “It actually helps deal with something called combined sewer overflow which is very much a problem in urban older communities where a lot of rainwater comes off of roofs, gets into the sewer systems, and then the sewer systems cannot handle the higher flow. So what happens is when you get heavy rainstorms, you get partially treated sewage and sometimes raw sewage going out into our rivers”.Results of a study completed in 2009 by the Penn State Green Roof Center of Pennsylvania State University at University Park, PA indicated that, “green roofs are capable of removing 50% of the annual rainfall volume from a roof through retention and evapotranspiration”. Accordingly, the effectiveness of Green roofs in combating excessive stormwater runoff cannot be denied. [Green Roofs for Stormwater Runoff Control, National Risk Management Research Laboratory, Publication EPA/600/R-09/026, February, 2009]The extent to which these new measures, if the legislation passes, will assist in stormwater management and controlling water quality remains to be seen. Two things are certain: 1) the stormwater problem and associated flooding is increasing; and 2) New Jersey and other states are likely to require a change in design and construction in order to confront the problem. Think about that the next time that flooding harms your neighbors or inconveniences you. I know that I will.

The U.S. Environmental Protection Agency Friday denied 10 petitions for reconsideration of its Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act.
Led by the Chamber of Commerce of the United States of America, the petitions sought to put the brakes on EPA’s regulatory steps that would serve as the trigger for classifying greenhouse gas (GHG) emissions as pollutants under the Clean Air Act. Although Section 202(a) covers exhaust from new motor vehicles, regulating GHGs in this context has far broader implications because other sections of the Clean Air Act use the same definition of “pollutant” and the regulatory findings, if allowed to stand, will trigger broader consequences for stationary sources like major power plants, industrial boilers and cement kilns. (EPA’s original findings can be found in the December 15, 2009 Federal Register at 74 FR 66496).
In denying the petitions to reconsider its findings, EPA said that petitioners’ arguments and evidence are inadequate, generally unscientific, and do not show that the underlying science supporting the Endangerment Finding is flawed, misinterpreted by EPA, or inappropriately applied by EPA. The denial can be found in the August 13th Federal Register at 75 FR 49556 and a 3-volume, 360-page compendium supporting EPA’s denials can be found at www.epa.gov/climatechange/endangerment.html.
Citing widely-reported e-mails from the United Kingdom-based Climatic Research Unit of the Intergovernmental Panel on Climate Change questioning the climate science, the petitioners argued that recent revelations show that the science supporting the EPA’s findings was flawed or questionable, and that EPA should reconsider the Endangerment Finding.
EPA replied that the petitioners’ claims and supporting information do not change or undermine the scientific understanding of how anthropogenic emissions of GHGs cause climate change and how human-induced climate change generates risks and impacts to public health and welfare. “This understanding has been decades in the making and has become more clear over time with the accumulation of evidence,” EPA wrote in response.
“The core defect in petitioners’ arguments is that these arguments are not based on consideration of the body of scientific evidence. Petitioners fail to address the breadth and depth of the scientific evidence and instead rely on an assumption of inaccuracy in the science . . .,” said EPA.
EPA’s response to the petitions shows that EPA remains committed to pursuing regulatory changes that address climate change even as global warming legislation continues to stall in the Congress.

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.